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74. Protecting a Right to Personal Privacy

Right to personal privacy—developments in Australia and elsewhere

74.16 Common law and
legislative developments in Australia and other comparable overseas
jurisdictions cast light on the policy choices available for reform in this
area. Of particular interest are the statutory expressions of the tort of
invasion of privacy in the United States, some of the provinces of Canada[21]
and the Privacy Bill considered by the Irish Parliament.[22]
Common law developments—in the UK, New Zealand and Australia—of the test to
determine what is considered ‘private’ for the purpose of determining liability
for a breach of privacy are also of interest.

Statutory models

United States

74.17 In 1960, Professor William Prosser
surveyed American case law and found not one tort protecting privacy interests
but ‘a complex of four’.[23]
The SecondRestatement of the Law, Torts[24]
has adopted Prosser’s classification and provides for privacy tort protection
where:

1 One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of his privacy, if
the intrusion would be highly offensive to a reasonable person;

2 One who appropriates to his own use or benefit
the name or likeness of another is subject to liability to the other for
invasion of his privacy;

3 One who gives publicity to a matter concerning
the private life of another is subject to liability to the other for invasion
of his privacy, if the matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate concern to the
public;

4 One who gives publicity to a matter concerning
another that places the other before the public in a false light is subject to
the other for invasion of his privacy, if (a) the false light in which the
other was placed would be highly offensive to a reasonable person, and (b) the
actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.[25]

74.18 The privacy torts are
subject to the same defences that apply in the United States to defamation.[26]
Such defences include: an absolute parliamentary and court privilege; consent;
and conditional privileges for other activities, such as reporting public
proceedings and reasonable investigation of a claim against a defendant.[27]

74.19 The privacy torts have
proved to be of limited effect, due in no small part to the existence of a
constitutionally entrenched right to a free press. If the subject is newsworthy,
and the newsworthy event occurs in a public place, privacy protection tends to
take a back seat to the First Amendment protection of freedom of the press.[28]
The concept of ‘newsworthy’ in the United States appears to be broader than the
concept of ‘public interest’—and, in particular, the right to freedom of
expression—discussed below, applied by the UK courts in privacy cases.

74.20 The State of California has attempted to provide some additional protection, in particular for
celebrities, through the enactment of a cause of action for physical invasion
of privacy. This applies

when the defendant knowingly
enters on to the land of another without permission or otherwise commits a
trespass in order to physically invade the privacy of the plaintiff with the
intent to capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial activity and the
physical invasion occurs in a manner that is offensive to a reasonable person.[29]

74.21 To address the problems
associated with an evolving technological environment, § 1708.8 of the California
Civil Code also establishes an action for constructive invasion of privacy
when

the defendant attempts to
capture, in a manner that is offensive to a reasonable person, any type of
visual image, sound recording, or other physical impression of the plaintiff
engaging in a personal or other familial activity under circumstances in which
the plaintiff had a reasonable expectation of privacy, through the use of a
visual or auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical impression could
not have been achieved without a trespass unless the visual or auditory
enhancing device was used.[30]

74.22 The legislation has
been in force since 1998,[31]
and the provision’s teeth are found in the penalties that apply for committing
the invasion, constructive invasion or assault. The penalties include up to
three times the amount of general and special damages (‘treble damages’)
proximately caused by the invasion, constructive invasion or assault; punitive
damages; and possible forfeiture of any proceeds or consideration obtained.[32]
Those that direct, solicit, actually induce or cause another person to commit
such an assault may also be liable.[33]
Whether the legislation survives a constitutional challenge remains to be seen.[34]

Canada

74.23 An individual’s right
to privacy has received statutory protection in four provinces in Canada.[35]
Generally, the legislation provides that ‘it is a tort, actionable without
proof of damage, for a person wilfully and without claim of right, to violate
the privacy of another person’.[36]
The legislation also stipulates a number of general defences, including
consent, exercise of a lawful right of defence of person or property, acts or
conduct authorised or required by law, privilege and fair comment on a matter
of public interest.[37]
Remedies include damages, an injunction, an account for profits and an order
for the delivery up of material.[38]

74.24 While the Canadian
Charter of Rights and Freedoms 1982[39]
does not specifically guarantee a right to privacy, the Supreme Court of Canada
has interpreted the right in s 8 to be secure against unreasonable search
and seizure to include a reasonable expectation of privacy in relation to
governmental acts.[40]
The province of Quebec has guaranteed ‘a right to respect for … personal life’
in the Quebec Charter of Human Rights and Freedoms.[41]

Ireland

74.25 In 2006, the Irish
Parliament considered the Privacy Bill 2006 which would have established a
‘tort of invasion of privacy’ in Irish law. Under the Bill, the tort would have
been actionable without proof of damage, but limited to deliberate and
intentional conduct, without lawful authority.[42]
The Bill stated that a person is entitled to privacy that is ‘reasonable in all
the circumstances having regard to the rights of others and to the requirements
of public order, public morality and the common good’.[43]

74.26 As noted below, the
Bill was criticised by journalists as limiting the right to freedom of the
press and inhibiting investigative journalism.[44]
In 2007, it was reported that the Irish Government had decided not to proceed
with the Bill.[45]

Common law developments

United Kingdom

74.27 The developments in
the UK have been influenced in recent years by the European Convention on
Human Rights (ECHR) and the Human Rights Act 1998 (UK) (HRA 1998). The ECHR contains a right to private and family life, home and
correspondence in art 8.[46]
The HRA 1998 incorporates (to some extent) the ECHR into the domestic law of
the UK.[47]
The HRA 1998 came into force in October 2000.[48]

74.28 There is no
freestanding right to privacy in the UK. The courts repeatedly have stated that
‘English law knows no common law tort of invasion of privacy’.[49]
Instead, the cause of action for breach of confidence has been extended to
encompass misuse or wrongful dissemination of private information.[50]
Extensive expansion of the law in this area has occurred in recent years.

74.29 The formulation of the
cause of action for breach of confidence was set out in Coco v A N Clark
(Engineers) Ltd.[51]
To establish the cause of action, at that time: the information must have had the necessary quality of confidence; the
information must have been imparted in circumstances giving rise to an
obligation of confidence; and there must have been unauthorised use of that
information to the detriment of the party communicating it.

74.30 The
evolution of the cause of action for breach of confidence was summarised by
Lord Phillips MR in Douglas v Hello!

Megarry J in Coco v A N Clark identified two requirements for the creation of a duty of confidence. The first
was that the information should be confidential in nature and the second was
that it should have been imparted in circumstances importing a duty of
confidence. As we have seen, it is now recognised that the second requirement
is not necessary if it is plain that the information is confidential, and for
the adjective ‘confidential’ one can substitute the word ‘private’. What is the
nature of ‘private information’? It seems to us that it must include
information that is personal to the person who possesses it and that he does
not intend shall be imparted to the general public. The nature of the
information, or the form in which it is kept, may suffice to make it plain that
that the information satisfies these criteria.[52]

74.31 In Ash v McKennitt,
the English Court of Appeal recognised that a

feeling of discomfort arises
from the action for breach of confidence being employed where there was
no pre-existing relationship of confidence between the parties, but the
‘confidence’ arose from the defendant having acquired by unlawful or
surreptitious means information that he should have known he was not free to
use …[53]

74.32 The court went on to
note that, ‘at least the verbal difficulty … has been avoided by the
rechristening of the tort as misuse of private information: per Lord Nicholls
of Birkenhead in Campbell’.[54]

74.33 The House of Lords
decision in Campbell v MGN Ltd is the leading authority on the scope of
what subsequently has been termed, in the Court of Appeal hearing in Douglas,
as the ‘the cause of action formally described as breach of confidence’.[55]

74.34 Model
Naomi Campbell brought proceedings in breach of confidence against Mirror
Group Newspapers in relation to a newspaper article which stated that she was a
drug addict and that she was attending Narcotics Anonymous. The article was
accompanied by a photograph of Campbell on a public street outside a Narcotics
Anonymous premises. Campbell succeeded in her claim at first instance, however,
this was overturned in the Court of Appeal. The case was taken to the House of
Lords.

74.35 Campbell conceded early on in proceedings that the newspaper was entitled to
publish the fact that she had a drug problem and that she was receiving
treatment. She conceded this aspect of the publication because she had
previously asserted the fact that, unlike other models, she did not abuse drugs
and, therefore, disclosure was in the public interest.

74.36 The
House of Lords was left to consider whether Campbell’s treatment, the fact that
she was attending Narcotics Anonymous and the photograph constituted an
invasion of her privacy. The House of Lords found, by a 3:2 majority, that
those features did constitute an invasion of her privacy. Reporting that her
treatment was being provided by Narcotics Anonymous and the details of that
treatment ‘went significantly beyond the publication of the fact that she was
receiving therapy or that she was engaged in a course of therapy with [Narcotics
Anonymous]’.[56]

European Convention on Human Rights

74.37 Developments
in the UK regarding an action for breach of privacy must now be discussed with
reference to the human rights legislation in force in the European Union. The
ECHR came into force in the UK in October 2000.[57]
Since that time, the courts in the UK have been influenced by art 8 of the
Convention,[58]
and by the Strasbourg jurisprudence interpreting this article.[59]

74.38 When analysing whether
the elements of the tort have been established in a case of unlawful
publication of private information (which, to date, constitutes the majority of
the case law in the UK), the court engages in a two-part balancing exercise.
The court first ascertains whether the information is private ‘in the sense
that it is in principle protected by article 8’. If the answer is ‘yes’, the
court then asks: ‘in all the circumstances, must the interest of the owner of
the private information yield to the right of freedom of expression conferred
on the publisher by article 10’? [60]

74.39 Professor Gavin Phillipson has summarised the development in Campbell as follows:

The House recognised that the
first port of call in determining whether there are facts worthy of protection
should be the Article 8 case law and, secondly, that the test of high
offensiveness was therefore not to be used as a threshold test, which had to be
satisfied in all cases, but rather only as a tie-breaker, to determine marginal
or doubtful cases and to be used to help determine the weight or seriousness of
the privacy interest when balancing it against the competing interest in
publication.[61]

74.40 The courts in the UK have avoided setting too high a bar when determining what ‘private’ means within the
context of art 8. When considering the first limb of the test, the person
alleging a breach of art 8 must establish that interference with private
life was of ‘some seriousness’ before the article is engaged.[62]

74.41 It is unclear whether
‘some seriousness’ equates to, or is lower than, the standard of disclosure
that is ‘highly offensive to a reasonable person of ordinary sensibilities’,
propounded in cases such as Lenah Game Meats.[63]
In Campbell, Nicholls LJ warned that the ‘highly offensive’
formulation

should be used with care for
two reasons. First, the ‘highly offensive’ phrase is suggestive of a stricter
test of private information than a reasonable expectation of privacy. Second,
the ‘highly offensive’ formulation can all too easily bring into account, when
deciding whether the disclosed information was private, considerations which go
more properly to issues of proportionality; for instance, the degree of
intrusion into private life, and the extent to which publication was a matter
of proper public concern. This could be a recipe for confusion. [64]

74.42 Hope LJ noted
that the threshold test is ‘what a reasonable person of ordinary sensibilities
would feel if she was placed in the same position as the claimant and faced
with the same publicity’.[65]
Baroness Hale LJ suggested a similar formulation.[66]

74.43 Once the information
is identified as ‘private’, the court must then ‘balance the claimant’s interest
in keeping the information private against the countervailing interest of the
recipient in publishing it’.[67]
This balancing test is contextual—that is, determined by reference to the facts
of the particular case. The principles formulated by the trial judge in McKennitt
v Ash,[68]
and endorsed by the English Court of Appeal, to determine the second limb of
the test are:

i) Neither article [8 nor art 10
of the ECHR] has as such precedence over the other.

ii) Where conflict arises between the
values under Articles 8 and 10, an ‘intense focus’ is necessary upon the
comparative importance of the specific rights being claimed in the individual
case.

iii) The court must take into account the justifications
for interfering with or restricting each right.

74.44 Shortly after the
decision in Campbell,the European Court of Human Rights decided Von
Hannover v Germany,[70]
which concerned a claim brought by Princess Caroline of Monaco on the basis that certain decisions of the German courts had infringed her right
under art 8 to respect for her private life.

74.45 A number of
photographs of Princess Caroline had been published in German magazines.
The photographs consisted of images of the Princess with her children; with a
male friend at a restaurant; on holiday and engaged in sporting activities with
her husband; and at the Monte Carlo Beach Club, where she was dressed in a
swimsuit. One of the beach club images showed the Princess falling over.

74.46 The Princess brought a
number of claims for injunction against the media in the German courts. The
German Federal Court granted her relief in respect of the restaurant
photographs and photographs of the Princess and her children. The European
Court of Human Rights, therefore, was asked to uphold her right to privacy in
relation to the photographs of the Princess on holiday, engaged in sporting
activities with her husband and at the Monte Carlo Beach Club.

74.47 In Von Hannover,the European Court of Human Rights established the benchmark from which an
analysis of the application of art 8 must proceed. The Court recognised
the ‘fundamental importance of protecting private life from the point of view
of the development of every human being’s personality’.[71]
The Court noted that the protection ‘extends beyond the private family circle
and also includes a social dimension … anyone, even if they are known to the
general public, must be able to enjoy a “legitimate expectation” of protection
of and respect for their private life’.[72]

74.48 It is clear from the
reasoning in Von Hannover that the Court took into account—to use the
words found in the Terms of Reference for this Inquiry[73]—‘the
need of individuals for privacy in an evolving technological environment’. The
Court stressed the fact that ‘increased vigilance in protecting private life is
necessary to contend with new communication technologies which make it possible
to store and reproduce personal data’.[74]

74.49 The Von Hannover
case suggests that the obligation to respect private life does not encapsulate
merely activities conducted in private or sensitive events occurring in public.
The obligation also extends to relatively ordinary daily activities occurring
in public places. This is quite different from the reasoning of the English
Court of Appeal in Campbell. In that case, Lady Hale found that the
mere fact that the photography is covert does not make the act recorded
private.

The activity photographed must
be private. If … she pops out to the shops for a bottle of milk … there is
nothing essentially private about that information nor can it be expected to
damage her private life.[75]

74.51 Phillipson has
identified two potential interpretations of Von Hannover. The ‘absolutist’ interpretation is

the view that any publication of an unauthorised photograph
specifically taken of a particular person engaged in an everyday activity
outside their official duties will involve a prima facie violation of
art 8.[76]

74.52 Recognising that the
courts may be inclined to read down Von Hannover, however, he also
identified a more restrictive reading of the judgment, which he thought that
the courts may adopt to ‘reconcile that decision [Von Hannover] with Campbell’.
The narrow interpretation claims that two elements were essential for the
finding that art 8 was engaged in Von Hannover. Those two elements
were: (a) the fact that the pictures relate to the Princess’s everyday
life, not her official functions; and (b) the constant intrusion that
persistent photographing represents.[77]

74.53 This interpretation
limits the scope of Von Hannover to cases where an element of harassment
is present. The narrow interpretation received some endorsement in John v
Associated Newspapers,[78]
but was dismissed in McKennitt v Ash[79]
and in the decision at first instance in Murray v Express Newspapers.[80]

74.54 Despite rejecting the
narrow approach, the courts arguably have adopted a middle ground in cases such
as McKennitt v Ash.[81]
As noted above, in McKennitt v Ash, the Court of Appeal held that the
person alleging a breach of art 8 must establish that interference with
private life was of ‘some seriousness’ before art 8 is engaged.[82]
This contradicts the principle underpinning Von Hannover, which, on an
‘absolutist’ reading of the judgment, leaves no scope for a test of
‘seriousness’. In Murray, Patten J held that ‘even after Von-Hannover there
remains … an area of routine activity which when conducted in a public place
carries no guarantee of privacy’.[83]

74.55 In Murray, Murray—who is also known as JK Rowling (the author of the Harry Potter books)—and
her husband sued a photo agency on behalf of their 18 month old son. The
agency’s photographer took a covert photograph of the couple and their son on a
street in Edinburgh. The photograph, which was published in a newspaper,
clearly showed the son’s face. Rowling and her husband claimed that the
photograph breached their son’s right to privacy, and that its publication was
a misuse of private information.

74.56 In dismissing the case
before trial, Patten J stated:

If a simple walk down the
street qualifies for protection then it is difficult to see what would not. For
most people who are not public figures in the sense of being politicians or the
like, there will be virtually no aspect of their life which cannot be
characterised as private. Similarly, even celebrities would be able to confine
unauthorised photography to the occasions on which they were at a concert, film
premiere or some similar function.[84]

74.57 In the subsequent
appeal, the Court of Appeal found that Patten J had incorrectly taken the
view that the Murrays had sought, through an action in the name of their son,
to establish a right to personal privacy for themselves and their family when
engaged in ordinary family activities.[85]
The Court of Appeal stated the child had a right to privacy distinct from that
of his parents. As the appeal was against an order striking out the action, the
Court of Appeal was not required to analyse the difference between Von
Hannover and the UK cases in any detail. It did, however, make some comment
as to when a reasonable expectation of privacy could arise.

We do not share the predisposition identified by the judge …
that routine acts such as a visit to a shop or a ride on a bus should not
attract any reasonable expectation of privacy. All depends on the
circumstances.[86]

74.58 In coming to this view, the Court of Appeal echoed some of the reasoning
in Von Hannover by focusing on the intrusive nature of media attention
on celebrities.

It seems to us, that, subject to the facts of the particular
case, the law should indeed protect children from intrusive media attention, at
any rate to the extent of holding that a child has a reasonable expectation
that he or she will not be targeted in order to obtain photographs for
publication which the person who took or procured the taking of the photographs
knew would be objected to on behalf of the child.[87]

New Zealand

74.59 In Hosking v Runting, a majority of the New Zealand Court of
Appeal held that the tort of invasion of privacy should be recognised as part
of the common law of New Zealand.[88]
While the majority stressed that ‘the cause of action will evolve through
future decisions as courts assess the nature and impact of particular
circumstances’,[89]
the Court was prepared to extend tort protection to wrongful publicity given to
private lives. The Court of Appeal was influenced by the third formulation of
the United States privacy tort,[90]
holding that:

there are two fundamental
requirements for a successful claim for interference with privacy:

1 The existence of facts in respect of which there
is a reasonable expectation of privacy; and

2 Publicity given to those private facts that would
be considered highly offensive to an objective reasonable person.[91]

74.60 In the recent case of Rogers v TVNZ, the Court of Appeal considered whether a videotaped
confession for trial (which TVNZ proposed to broadcast) could meet the test of a
reasonable expectation of privacy. The court found that even though the tape
was not inherently ‘private’, it could be considered to have been private
outside its use in the courtroom. The court considered, however, that its
privacy value was at the ‘low end of the scale’, which would impact on the
later balancing of the right to privacy against other rights in favour of
publishing the material.[92]
In this case, those other rights were considered to be freedom of expression
and open justice. The matter was sent back to the lower courts for substantive
hearing.

Australia

74.61 Prior to 2001, the
major obstacle to the recognition in Australia of a common law right to privacy
was the 1937 High Court decision in Victoria Park Racing and Recreation
Grounds Co Ltd v Taylor.[93]
In a subsequent decision, the High Court in Lenah Game Meats indicated
clearly that the decision in Victoria Park ‘does not stand in the path
of the development of … a cause of action [for invasion of privacy]’.[94]
The elements of such a cause of action—and whether the cause of action is to be
left to the common law tradition of incremental development or provided for in
legislation—remain open questions.[95]

74.62 Since then, two
Australian cases have recognised expressly a common law right of action for
invasion of privacy. In the 2003 Queensland District Court decision in Grosse
v Purvis, Skoien SDCJ awarded aggravated compensatory damages and
exemplary damages to the plaintiff for the defendant’s breach of the
plaintiff’s privacy.[96]
After noting that the High Court in Lenah Game Meats had removed the
barrier the Victoria Park case posed to any party attempting to rely on
a tort of invasion of privacy, his Honour took what he viewed as ‘a logical and
desirable step’ and recognised ‘a civil action for damages based on the
actionable right of an individual person to privacy’.[97]

74.63 While emphasising that ‘it is not my task nor my intent to state the
limits of the cause of action nor any special defences other than is necessary
for the purposes of this case’, Skoien SDCJ enumerated the essential
elements of the cause of action:

1 a willed act by the
defendant;

2 which
intrudes upon the privacy or seclusion of the plaintiff;

3 in a manner which would be considered highly
offensive to a reasonable person of ordinary sensibilities; and

4 which causes the plaintiff detriment in the form
of mental, physiological or emotional harm or distress, or which prevents or
hinders the plaintiff from doing an act which he or she is lawfully entitled to
do.[98]

74.64 His Honour noted that
a defence of public interest should be available, but that no such defence had
been made out on the facts of the case.[99]

74.65 In Doe v Australian
Broadcasting Corporation (Doe v ABC), the defendant broadcaster
published in its afternoon and evening radio news bulletins information that
identified the plaintiff—a victim of a sexual assault.[100]
In doing so, the defendant breached s 4(1A) of the Judicial Proceedings
Reports Act 1958 (Vic), which makes it an offence in certain
circumstances to publish information identifying the victim of a sexual
offence. Hampel J in the County Court of Victoria held that, in addition
to breaching a statutory duty owed to the plaintiff by virtue of the Judicial
Proceedings Reports Act, the defendant broadcaster and two of its employees
were liable to the plaintiff in equity for breach of confidence, and in tort
for invasion of privacy.[101]

74.66 In holding that a tort
for invasion of privacy had been proved, Hampel J noted that

this is an appropriate case to
respond, although cautiously, to the invitation held out by the High Court in Lenah
Game Meats and to hold that the invasion, or breach of privacy alleged here
is an actionable wrong which gives rise to a right to recover damages according
to the ordinary principles governing damages in tort.[102]

74.67 Responding to the
repeated suggestion by defence counsel that recognition of a tort of invasion
of privacy would be a ‘bold step’,[103]
her Honour stated:

If the mere fact that a court
has not yet applied the developing jurisprudence to the facts of a particular
case operates as a bar to its recognition, the capacity of the common law to
develop new causes of action, or to adapt existing ones to contemporary values
or circumstances is stultified. Lenah Game Meats, and the UK cases … in particular those decided since Lenah Game Meats, demonstrate a rapidly
growing trend towards recognition of privacy as a right in itself deserving of
protection.[104]

74.68 The decision in Doe v ABC was appealed, but the matter was
settled on 4 March 2008. To date, no other Australian court has
followed suit in recognising a cause of action for breach of privacy. In fact,
the scant judicial commentary on the issue leans in the opposite direction.[105]
In Giller v Procopets, Gillard J of the Supreme Court of Victoria
noted that:

Although it has been advocated
from time to time that there should be a cause of action based on failure to
respect the privacy of a person, both English and Australian law have not
recognised a cause of action based upon breach of privacy.[106]

74.69 His Honour concluded
that, ‘in my opinion the law has not developed to the point where the law in Australia recognises an action for breach of privacy’.[107]
The decision is Giller is now the subject of an appeal.

[32]California Civil Code § 1708.8(d). If an assault is committed with the intent to capture the visual image, sound recording, or other physical impression of the plaintiff, the penalties in § 17808.8(d)–(h) also apply: California Civil Code § 1708.8(c).

[39] Enacted
as Schedule B to the Canada Act1982 c 11 (UK), which came into force on 17 April 1982.

[40]R v Dyment [1988] 2 SCR 417, 426. See also Godbout v Longueuil (City) [1997] 3 SCR 844, 913 (s 8 of the Canadian Charter of Rights and Freedoms guarantees a sphere of individual autonomy for all decisions relating to ‘choices that are of a fundamentally private or inherently personal nature’).

[44] See
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007), [3.61]–[3.63].

[45] F
Sheanan ‘New Libel Law is Top Priority as Privacy Bill is Shelved’, Independent
(online), 12 November 2007, <www.independent.ie>.

[46]
Article 8(1) provides that ‘everyone has the right to respect for his
private and family life, his home and his correspondence’. Article 8(2)
provides that ‘there shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others’.

[47] Section 6
of the Human Rights Act 1998 (UK) requires public
authorities, including courts, to act in accordance with the European
Convention on Human Rights. The domestic courts are also given the task of
reading domestic legislation in line with the European Convention on Human
Rights, via s 3. When interpreting Convention rights the courts must
take into account Strasbourg jurisprudence: Human Rights Act1998 (UK) s 2.

[48]Convention for the Protection of Human Rights and Fundamental Freedoms, 10 December 1948, Council of Europe, ETS No 005, (entered into force generally on 3 September 1953). The Convention was implemented by the Human Rights Act1998 (UK).

[57]Convention for the Protection of Human Rights and Fundamental Freedoms, 10 December 1948, Council of Europe, ETS No 005, (entered into force generally on 3 September 1953). The Convention was implemented by the Human Rights Act1998 (UK).

[58] Article
8(1) provides that ‘everyone has the right to respect for his private and
family life, his home and his correspondence’.

[61]
G Phillipson, ‘The ‘Right’ of Privacy in England and Strasbourg Compared’ in A Kenyon and M Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (2006) 184, 193.

[76] G Phillipson, ‘The ‘Right’ of Privacy in England and Strasbourg Compared’ in A Kenyon and M Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (2006) 184. The same argument is also made in H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006), ch 13.

[101]
In Giller v Procopets [2004] VSC 113, an earlier case from the Victorian Supreme Court, Gillard J concluded that ‘the law has not developed to the point where the law in Australia recognises an action for breach of privacy’: Giller v Procopets [2004] VSC 113, [188]. See also Kalaba v Commonwealth [2004] FCA 763; leave to appeal refused: Kalaba v Commonwealth [2004] FCAFC 326. For a critique of Giller, see D Butler, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 339, 36­1–363.